In
Australasian Performing Right Association Ltd v Telstra Corporation Limited [2019] FCA 751 Perram J comments
One popular form of entertainment is the music video. A music video is a short film which integrates a song with visual imagery. One purpose, perhaps the principal purpose, of music videos is to encourage those who see them to buy the songs which are embedded in them. Consequently, as a promotional object music videos have generally been provided to the public free of charge. At first, they appeared on particular television shows such as, in this country, Countdown. Later, in 1981, an entire channel—MTV—was launched dedicated to playing them continuously. Since 1987 the ABC has run a program—Rage—which plays music videos all night every weekend.
In the genteel age before the internet, it was of course possible for persons determined not to have to pay for their music to record a song embedded in a music video on a cassette recorder. However, the quality of such recordings was very poor and the practice never really took hold.
In the age of the internet, music videos have persisted on MTV and numerous other television outlets although they have to an extent been challenged by other forms of high-brow entertainment now available. Many of them involve house inspections or the rituals of courtship, and sometimes both. Nevertheless, despite these diversions, the Rage is maintained. Music videos are also now available by way of streaming from the internet. One prominent site which offers streaming of music videos is YouTube, a website maintained by a subsidiary of Google LLC (itself a subsidiary of Alphabet Inc.). A person may visit YouTube and watch a streamed version of just about any music video they wish. One typical aspect of the streaming experience is that whilst YouTube permits a user to watch the music video it does not permit either the music video or its soundtrack to be permanently downloaded to the user’s device. This limitation serves as an encouragement to users to purchase the song.
Like most modern prohibitions, it may be readily circumvented by persons with sufficient computer literacy. The general practice of extracting a file for download from a streaming service is usually called ‘ripping’.
When a person rips a song from a music video, two copyrights are infringed. The first copyright is in the musical work which is being performed by the artist, that is to say, the copyright in the music itself. This is a copyright in a ‘work’ regulated by Pt III of the Copyright Act 1968 (Cth) (‘the Act’). The second is the copyright in the performance of the song which, not being a work governed by Pt III, is a subject matter other than a work and therefore governed by Pt IV of the Act. A third copyright is involved in this case too, albeit indirectly, and this is the copyright which inheres in the music video itself which is, after all, a cinematographic film and hence subject to copyright under Pt IV (specifically, s 90). These copyrights may be owned by a variety of persons. Leaving aside any process by which the copyrights are assigned, the copyright in a musical work is originally vested in its author (s 35(2)) which because the copyright generally expires 70 years after the author dies (s 33(2), item 1), necessarily implies that the author is a human: IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; 239 CLR 458 at 494 [97] per Gummow, Hayne and Heydon JJ; Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149; 194 FCR 142 at 166 [72] per Keane CJ, 172 [100] per Perram J and 182 [134] per Yates J. The copyright in a sound recording vests in its maker (s 97(2)) which will be where one party (i.e. a record company) contractually engages another (i.e. an artist) to make the sound recording for the first party (i.e. the record company) (s 97(3)). The owners of the copyright in a cinematographic film are the director of the film, its producer and the screenwriter (s 98(2)).
This case is concerned with a number of websites which enable users to rip soundtracks from music videos streamed from YouTube (collectively, the ‘online locations’). ...
The Applicants are all owners of the copyright in Australia in a number of well-known sound recordings (i.e. subject matters other than works under Pt IV) or musical works (under Pt III) or, if not the owners, are the exclusive licensees of that copyright. They now apply for orders under s 115A of the Act which, if made, would require most of the internet service providers operating in Australia to take steps to disable access to the abovementioned domain names. The respondents to this application are the major Australian internet service providers: Telstra, Foxtel, Vodafone, Optus and TPG. With the exception of TPG each has filed a submitting appearance. TPG did not file such an appearance but also did not appear to oppose the making of the orders sought. None of the owners of the online locations sought to be joined to the proceeding. This is so notwithstanding as I explain below that I am satisfied they had notice of this application.
The matter was heard on 3 April 2019 at which time I made the orders sought by the Applicants. I did so because the case presented as a clear case of blatant piracy requiring the granting of immediate relief. I indicated that I would deliver my reasons later. At the same time as I made those orders I extended the time for any appeal to 28 days after the production of these written reasons.
